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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Number EB-07-BF-020
Viva Communications Group, LLC )
NAL/Acct. No.
Licensee of Station WSDE ) 200832280002
Cobleskill, New York ) FRN 0011157781
Facility ID # 4002 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 20, 2007
By the Resident Agent, Buffalo Office, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Viva Communications Group, LLC ("Viva"), licensee of AM radio
station WSDE, Cobleskill, New York , has apparently willfully and
repeatedly violated Sections 11.35(a), 73.1560(a), 73.1745(a), and
73.3526(e)(12), of the Commission's Rules ("Rules") by failing to
maintain operational Emergency Alert System ("EAS") equipment, failing
to sign off at local sunset time, failing to maintain daytime
operating power at more than 90% of the authorized power, and failing
to maintain a complete public inspection file. We conclude, pursuant
to Section 503(b) of the Communications Act of 1934, as amended
("Act"), that Viva is apparently liable for a forfeiture in the amount
of sixteen thousand dollars ($16,000).
II. BACKGROUND
2. On May 4, 2007, the FCC's Buffalo Office received a complaint
regarding AM station WSDE, Cobleskill, New York. The complaint alleged
that the station was operating during nighttime hours, was not
maintaining a complete public inspection file, and was not maintaining
an EAS system.
3. On May 4, 2007, an agent in the Buffalo Office searched the FCC's data
base and determined that WSDE is authorized to operate with a power of
1000 watts daytime. The station is not authorized for nighttime
operation and must sign off the air at local sunset, which is 7:15 PM
Eastern Standard Time for the month of May.
4. On May 9, 2007, the agent traveled to Cobleskill, New York and
monitored radio station WSDE before and after local sunset. The agent
determined that WSDE remained on the air with programming after local
sunset. The agent conducted field strength measurements before and
after local sunset and determined that the radio station was operating
at the same power level for both daytime and nighttime.
5. On the morning of May 10, 2007, the agent monitored radio station WSDE
before and after sunrise. The agent determined radio station WSDE was
on the air with programming before sunrise. The agent conducted field
strength measurements before and after sunrise and determined the
radio station was operating at the same power level for daytime and
nighttime.
6. Later that morning, the FCC agent visited WSDE's main studio and met
with Edward Hurak. Mr. Hurak admitted that the station remained on the
air after sunset and stated that the station had been operating at
nighttime for quite some time.
7. After conducting the inspection at the main studio, Mr. Hurak and the
agent went to the transmitter site. The agent determined that the
operating power of the station was only 33% of the authorized power,
i.e., 333 watts. Mr. Hurak stated that the station had technical
problems and that he wanted to keep the power low until the problems
were corrected.
8. The agent and Mr. Hurak later returned to WSDE's main studio. The
agent asked the operator on duty for the station's EAS logs. The
operator on duty stated that the station does not have an EAS log. The
operator on duty further stated that he has been employed at the
station for approximately three years and has never conducted an EAS
test. The operator further stated that he did not know the procedure
for conducting an EAS test and does not recall the last time the
station received an EAS test. The agent inspected the EAS equipment
and determined that it was not functioning; no stations could be
detected on the EAS receiver. The agent also found that the EAS
printer was not attached to the EAS equipment.
9. The agent reviewed the station's public inspection file and found that
it did not contain any issues/ programs lists for the last two years
III. DISCUSSION
10. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly.
11. Section 73.1560(a) of the Rules provides that AM stations must be
maintained as near as practicable to the authorized antenna input
power and may not be less than 90% nor more than 105% of the
authorized power. Section 73.1745(a) provides that "[no] broadcast
station shall operate at times, or with modes of power, other that
those specified and made part of the license...." Station WSDE's
license authorizes the station to operate during the daytime at 1000
watts and the station must sign off the air at local sunset and may
not sign on until local sunrise. The agent determined, based on
off-air monitoring and field strength measurement, and Mr. Hurak
confirmed, that station WSDE remained on the air after sunset on May
9, 2007, and was on the air before sunrise on May 10, 2007, with
approximately 333 watts of power. The agent also determined that
station WSDE was operating with approximately 333 watts of power
during the daytime, which is less than 90% of the station's authorized
power.
12. Section 11.35(a) of the Rules states that "EAS participants are
responsible for ensuring that EAS Encoders, EAS Decoders and Attention
Signal generating and receiving equipment used as part of the EAS are
installed so that the monitoring transmitting functions are available
during the times the stations and systems are in operation." On May
10, 2007, the agent found that WSDE's EAS equipment was not
operational and the operator on duty, who has been employed by the
station for approximately three years, reported that he does not
recall the last time an EAS test was received or conducted.
13. Section 73.3526(e)(12) of the Rules requires licensees to place in the
public inspection file, for each calendar quarter, a list of programs
that have provided the station's most significant treatment of
community issues during the preceding three month period. This list is
known as the radio Issues/Programs list. On May 10, 2007, in response
to a request to inspect the station's public inspection file, an agent
was provided a public inspection file for station WSDE that did not
contain any issues/programs lists for calendar years 2006 and 2007.
14. Based on the evidence before us, we find that Viva willfully and
repeatedly violated Sections 73.1560(a) and 73.1745(a) of the Rules by
failing to sign off the air at local sunset and remain off the air
until local sunrise as required by the station's license and by
operating at less than 90% of the station's authorized power. We also
find that Viva willfully and repeatedly violated Section 11.35 of the
Rules by failing to maintain operational EAS equipment. We further
find that Viva willfully and repeatedly violation Section
73.3526(e)(12) of the Rules by failing to maintain issues/programs
lists for a two-year period.
15. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for exceeding the power limits and operating at
less than 90% of the station's authorized power is $4000, the base
forfeiture amount for failure to maintain an operational EAS system is
$8000, and the base forfeiture amount for violation of the public
inspection file rule is $10,000. Because station WSDE's public
inspection file contained a portion of the required items, a downward
adjustment of the base forfeiture amount for this violation to $4,000
is warranted. In assessing the monetary forfeiture amount, we must
also take into account the statutory factors set forth in Section
503(b)(2)(D) of the Act, which include the nature, circumstances,
extent, and gravity of the violations, and with respect to the
violator, the degree of culpability, and history of prior offenses,
ability to pay, and other such matters as justice may require.
Applying the Forfeiture Policy Statement, Section 1.80, and the
statutory factors to the instant case, we conclude that Viva
apparently is liable for a $16,000 forfeiture.
IV. ORDERING CLAUSES
16. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Viva Communications Group,
LLC. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of sixteen thousand dollars ($16,000) for violations of
Sections 11.35(a), 73.1745(a), 73.1560(a), and 73.3526(e)(12) of the
Rules.
17. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Viva SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
18. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon Bank /LB 358340, 500
Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire
transfer may be made to ABA Number 043000261, receiving bank Mellon
Bank, and account number 911-6106.
19. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, Buffalo Office, 6400
Sheridan Drive, Suite 140, Williamsville, NY 14221 and must include
the NAL/Acct. No. referenced in the caption.
20. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
21. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director, Financial Operations, 445 12th Street,
S.W., Room 1A625, Washington, D.C. 20554.
22. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Viva Communications Group LLC at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
David Viglione
Resident Agent
Buffalo Office
Northeast Region
Enforcement Bureau
47 C.F.R. S:S: 11.35(a), 73.1560(a), 73.1745(a), 73.1870(a), and
73.3526(e)(12).
47 U.S.C. S: 503(b).
Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'willful', when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
47 C.F.R. S: 73.1560(a)
47 C.F.R. S: 73.1745(a).
47 C.F.R. S: 11.35(a)
47 C.F.R. S: 73.3526(e)(12).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S:1.80.
47 U.S.C. S: 503(b)(2)(D).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 11.35,
73.1745(a),73.1560(a), and 73.3526(e)(12).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission